Ryan Glass: Fixing Canada's Divorce Act

As 2013 drew to a close, Bill C-560 was tabled. It is expected to be presented to the House of Commons in the coming months. This legislation, which would make progressive reforms to the Divorce Act, is something that all Canadians should know about … and support.

The problems with the current system are straightforward. As stated by the Public Health Agency of Canada, most children are resilient and highly adaptive after marriage breakdown. The Agency stresses the importance of “protecting children from adult conflict” and enabling “positive relationships with both parents.” Sadly, the children who are subjected to the current litigative family law system often suffer from what the Agency describes as “damaged emotional development” due to the conflict and destruction of relationships with their own parents.

Child psychologists echo this, pointing to the statistical evidence which illustrates the damaging effects of conflict between parents, and parents who are uninvolved/removed from their children’s lives. Children in sole custody settings have notably (about three times) higher likelihoods of suffering from low self-esteem, insecurity and rejection, being underachievers (including school dropouts), substance abuse, depression, suicide, teen pregnancy, and even crime. Eighty percent of criminals are from single parent homes.

In an attempt to address the problems sighted above, in 1998, a federal Joint House-Senate Committee presented to Parliament a report, For the Sake of the Children. It proposed a more prescriptive approach to parenting after divorce, including an equal shared parenting presumption for good parents, instead of the current system, that, in most cases, awards primary custody to the mother unless the specific circumstances of the family make that impossible. The bill that’s currently before Parliament is wholly aligned with the recommendations of this report.

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Supporting the need for meaningful reforms, the Supreme Court has recently acknowledged material concerns with the current family law system. In a 2013 report, Justice Thomas Cromwell called for a “complete overhaul” of the family law system “from the ground up,” with a focus on ending a fixation on combat. The report goes on to say that estranged spouses and their children are seriously damaged by the current adversarial system.

Canada’s legal community, which profits immensely from the current system, is actively opposed to this legislation. This is despite the popularity of equal shared parenting among Canadians (80-85% approval among both men and women equally), the success these types of reforms are having elsewhere in the world, and the concerns raised by the Supreme Court. Under the guise of concern for the “best interests of children,” they argue that a default preference for shared custody is about managing outcomes for parents, rather than the best interests of children.

The negative impact of the current system on children, as well as their parents and extended family, is unconscionable and immoral

This is patently untrue. Establishing shared custody as the default position is a practical way of ending bitter court battles and keeping fit parents involved in their children’s lives — both of which will greatly enhance the outcomes for children. As stated by Saskatchewan’s prior Justice Minister, the Honourable Don Morgan, taking such a step in the Divorce Act would have the same positive impact that creating a similar in the Matrimonial Property Act had. It would help end many bitter court battles, as the treatment by the courts would be consistent and predictable — property is shared unless there is some specific and compelling reason that it should not be.

Sadly, the current family law system is promoting the conflict and disenfranchisement of parents that is most harmful to children. It pits parents against each other in bitter court battles that frequently result in a “winning” and “losing” parent. Do we desire a system where we litigate over children? Do we desire a system where the courts remove fit parents from their own children’s lives? The negative impact of the current system on children, as well as their parents and extended family, is unconscionable and immoral.

Indeed, the only people who would stand to benefit from preserving the status quo are the lawyers and legal staff who make their living off of it. That’s not a good enough reason to sustain a system that destroys family and hurts children. The experts have spoken, and the evidence is clear. Bill C-560’s proposed reforms are the right thing for Canada and especially for its children. It’s time to make this happen.

National Post

Ryan Glass sits on the board of directors of the Canadian Equal Parenting Council.

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